Citation Nr: 0534638
Decision Date: 12/23/05 Archive Date: 01/10/06
DOCKET NO. 03-28 731A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to an increased disability evaluation for
service-connected defective vision of the right eye, light
perception only, with scotoma, residuals of chorioretinitis,
currently rated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Michael Pappas, Counsel
INTRODUCTION
The veteran-appellant had active service from March 1948 to
April 1957.
Service connection was originally granted for chorioretinitis
of the right eye in October 1957, and evaluated as 30 percent
disabling. In that same rating decision, service connection
was also granted for scotoma of the right eye, and separately
evaluated as 10 percent disabling.
In an August 1962 rating decision, it was determined that the
simultaneous assignment of a 30 percent disability evaluation
for chorioretinitis of the right eye and a 10 percent
disability evaluation for scotoma of the right eye, exceeded
the evaluation for loss of use of the right eye, which
constituted pyramiding, and was therefore, clearly and
unmistakably erroneous. It was determined that the veteran
did have loss of use of the right eye; his right eye
disability was recharacterized as defective vision of the
right eye, light perception only, with scotoma, residuals of
chorioretinitis, and a 30 percent disability evaluation was
assigned.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a May 2003, rating decision by the
Department of Veterans Affairs (VA) Cleveland, Ohio Regional
Office (RO) that denied the veteran's claim of entitlement to
an evaluation in excess of 30 percent for the service-
connected eye disorder. The case is ready for appellate
review.
FINDINGS OF FACT
1. All evidence necessary for review of the issue on appeal
has been obtained, and VA has satisfied the duty to notify
the veteran of the law and regulations applicable to his
claim and the evidence necessary to substantiate his claim.
2. The veteran's residuals of chorioretinitis of the right
eye, is manifested by light perception only, with scotoma, in
the right eye; and central visual acuity of 20/25 near vision
and 20/30 distant vision, with a normal visual field, in the
left eye.
CONCLUSION OF LAW
The criteria for a disability evaluation in excess of 30
percent for defective vision of the right eye, light
perception only, with scotoma, residuals of chorioretinitis,
have not been met or approximated. 38 U.S.C.A. §§ 1155,
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.76,
4.76a, 4.84a, Diagnostic Code 6070 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran is seeking entitlement to an increased evaluation
for defective vision of the right eye, light perception only,
with scotoma, residuals of chorioretinitis, which is
currently rated as 30 percent disabling.
In the interest of clarity, the Board will initially address
the matter of whether this case has been appropriately
developed for appellate purposes. The Board will then
present a brief factual background. Relevant VA law and
regulations will be set out. Finally, the Board will analyze
the veteran's claim and render a decision.
The Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, 114 Stat. 2096 (2000) (VCAA) redefines the obligations
of VA with respect to the duty to assist and includes an
enhanced duty to notify a claimant as to the information and
evidence necessary to substantiate a claim for VA benefits.
38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159
(2005). VA is required to provide the claimant with notice
of what information or evidence is to be provided by the
Secretary and what information or evidence is to be provided
by the claimant with respect to the information and evidence
necessary to substantiate the claim for VA benefits.
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
The Board finds that VA's enhanced duty to notify under the
VCAA has been met. In this regard, the Board notes that VA
has provided the veteran with a copy of the May 2003 rating
decision and June 2003 statement of the case which included a
discussion of the facts of the claim, notification of the
basis of the decision, and a summary of the evidence used to
reach that decision. In a letter from the RO dated in August
2002, and in the June 2003 statement of the case, the veteran
was provided with additional notice regarding the evidence
needed to succeed in his claim and the relevant provisions of
the VCAA.
During the course of this appeal, the United States Court of
Appeals for Veterans Claims (Court or CAVC) decided Pelegrini
v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). In
Pelegrini II, the Court reaffirmed that the enhanced duty to
notify provisions under the VCAA should be met prior to an
initial unfavorable agency of original jurisdiction (AOJ)
decision on the claim. In the instant appeal, the Board
finds that any defect with respect to the timing of the VCAA
notice requirement was harmless error. In this case, the
initial notice provided to the veteran was given prior to the
first AOJ adjudication of the claim. As such, the notice
predated the initial AOJ adjudication in compliance with the
holding in Pelegrini II. Moreover, the veteran has been
provided with every opportunity to submit evidence and
argument in support of his claim and to respond to VA
notices. Therefore, to decide the appeal would not be
prejudicial error to the veteran.
The Board also acknowledges that the various notices to the
veteran contained no specific request for the veteran to
provide any evidence in the veteran's possession that
pertained to the claim or something to the effect that the
veteran give VA everything he had that pertained to his
claim. 38 C.F.R. § 3.159(b)(1) (2005). A complying notice,
however, need not necessarily use the exact language of the
regulation so long as that notice properly conveys to a
claimant the essence of the regulation. Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
The RO asked the veteran for all the information and evidence
necessary to substantiate his claim-that is, evidence of the
type that should be considered by VA in assessing his claim
for an increased disability rating for his service-connected
eye disorder. A generalized request for any other evidence
pertaining to the claim would have been superfluous and
unlikely to lead to the submission of additional pertinent
evidence. Therefore, it can be concluded, based on the
particular facts and circumstances of the case, the omission
of the request for "any evidence in the claimants possession
that pertains to the claim" in the notice did not harm the
veteran, and it would be legally proper to render a decision
in the case without further notice under the regulation. Id.
The Board also concludes that the requirements of the notice
provisions of the VCAA have been met, and there is no
outstanding duty to inform the veteran that any additional
information or evidence is needed. Quartuccio, 16 Vet. App.
at 187.
VA also has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A.
§ 5103A (West 2002); 38 C.F.R. § 3.159(c)). The RO obtained
the veteran's treatment records as they were identified by
the veteran. The veteran has given no indication that there
are additional treatment records that would indicate greater
eye pathology than is already of record. Moreover, upon the
submission of his substantive appeal in September 2003, the
veteran stated that all the medical evidence available had
been submitted. Consequently, it does not appear that there
are any additional pertinent treatment records to be
requested or obtained. Any question regarding notification
of the veteran of what evidence he was required to provide
and what evidence VA would attempt to obtain has essentially
been rendered moot by virtue of the fact that there is no
indication of pertinent treatment other than that provided by
VA, the record of which has already been obtained.
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002)
Additionally, the veteran was afforded a pertinent VA eye
examination in January 2003. The requirements of the VCAA
have been substantially met by the RO. Every possible avenue
of assistance has been explored, and the veteran has had
ample notice of what might be required or helpful to his
case. VA has satisfied its duties to inform and assist the
veteran in this case. Further development and further
expending of VA's resources is not warranted.
Having determined that the duty to notify and the duty to
assist have been satisfied, the Board turns to an evaluation
of the veteran's claim on the merits.
Criteria
A request for an increased rating must be viewed in light of
the entire relevant medical history. See 38 C.F.R. § 4.1
(2002); Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991).
However, where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
See Francisco v. Brown, 7 Vet. App. 55 (1994).
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities, which is
based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1
(2005).
If two evaluations are potentially applicable, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7.
Pertinent regulations do not require that all cases show all
findings specified by the Rating Schedule, but that findings
sufficiently characteristic to identify the disease and the
resulting disability and above all, coordination of rating
with impairment of function will be expected in all cases.
38 C.F.R. § 4.21. Therefore, the Board has considered the
potential application of various other provisions of the
regulations governing VA benefits, whether or not the
veteran, as well as the entire history of the veteran's
disability in reaching its decision, raised them. Schafrath
v. Derwinski, 1 Vet. App. 589, 595 (1991).
Visual acuity is rated based upon the best distant vision
obtainable after correction by glasses. 38 C.F.R. § 4.75.
Combined ratings for disabilities of the same eye should not
exceed the amount for total loss of vision of that eye unless
there is an enucleation or a serious cosmetic defect added to
the total loss of vision. 38 C.F.R. § 4.80 (2005). VA
regulations permit compensation for a combination of service-
connected and nonservice-connected disabilities, including
blindness in one eye as a result of service-connected
disability and blindness in the other eye as a result of
nonservice-connected disability, as if both disabilities were
service-connected, provided that the nonservice-connected
disability is not the result of the veteran's own willful
misconduct. 38 C.F.R. § 3.383(a) (2005).
Loss of use or blindness of one eye, having only light
perception, will be held to exist when there is inability to
recognize test letters at 1 foot (.30 m.) and when further
examination of the eyes reveals that perception of objects,
hand movements or counting fingers cannot be accomplished at
3 feet (.91 m.), lesser extents of visions, particularly
perception of objects, hand movements or counting fingers at
distances less than 3 feet (.91 m.), being considered of
negligible utility. With visual acuity 5/200 (1.5/60) or
less or the visual field reduced to 5° concentric
contraction, in either event in both eyes, the question of
entitlement on account of regular aid and attendance will be
determined on the facts in the individual case. 38 C.F.R. §
4.79.
Vision in one eye will be considered 30 percent disabling if
visual acuity in the other eye is 20/40 or better under 38
C.F.R. § 4.84a, Codes 6074, 6077; 20/40 or better under Code
6077; and 20/70 or better under Code 6078.
Blindness in one eye, having only light perception, will be
considered 30 percent disabling if visual acuity in the other
eye is 20/40 or better. 38 C.F.R. § 4.84a, Diagnostic Code
6070.
A 40 percent rating, or higher, is warranted only if there is
anatomical loss of the eye and visual acuity in the other eye
is 20/40 or worse. See 38 C.F.R. § 4.84a, Code 6066, or if
there is blindness in one eye and visual acuity of 20/50 or
worse in the other eye. Diagnostic Code 6069.
Under the criteria for rating impairment of visual field, a
20 percent rating is warranted if bilateral visual field
limited to 60 degrees but not 45 degrees; a 30 percent rating
is warranted if bilateral visual field is limited to 45
degrees but not to 30 degrees; and a 50 percent rating is
warranted if the bilateral visual field is limited to 30
degrees but not 15 degrees. Diagnostic Code 6080.
Combined ratings for disabilities of the same eye should not
exceed the amount for total loss of vision of that eye unless
there is an enucleation or a serious cosmetic defect added to
the total loss of vision. 38 C.F.R. § 4.80.
Factual Background
As indicated above, service connection was originally
established for chorioretinitis of the right eye in October
1957, and evaluated as 30 percent disabling. In that same
rating decision, service connection was also granted for
scotoma of the right eye, and separately evaluated as 10
percent disabling. In an August 1962 rating decision,
however, it was determined that the simultaneous assignment
of a 30 percent disability evaluation for chorioretinitis of
the right eye and a 10 percent disability evaluation for
scotoma of the right eye exceeded the evaluation for loss of
use of the right eye, which constituted pyramiding, and was
therefore, clearly and unmistakably erroneous. It was
determined that the veteran did have loss of use of the right
eye. Thus, his right eye disability was recharacterized as
defective vision of the right eye, light perception only,
with scotoma, residuals of chorioretinitis, and a 30 percent
disability evaluation was assigned under Diagnostic Code
6070, effective from June 1962. The veteran was also awarded
special monthly compensation under 38 U.S.C.A. § 1114,
subsection (k), and 38 C.F.R. § 3.350(a) based upon loss of
use of one eye.
The veteran filed the current claim for an increased rating
for his right eye disorder in August 2002.
The veteran's private medical treatment records from A.R.S.,
M.D. from September 1979 to April 2002 were associated with
the claims file. The report of the April 2002 examination
notes chorioretinitis in the right eye and a normal left eye.
The veteran was afforded a VA eye examination in January
2003. The report of that examination noted a history of
chorioretinitis of the right eye in 1952. The veteran
complained that his left eye was now blurring. Physical
examination revealed light perception only in distant and
near vision for the right eye, and 20/30 distant vision with
20/25 near vision for the left eye. There was no limitation
in the visual field of the left eye, with it being within
normal limits. Inexplicably, the report of the examination
provided an assessment of chorioretinitis and legal blindness
of the left eye. Cataracts were also noted, with the left
eye being greater than the right eye. A handwritten
impression within the report, however, noted the examiner's
impression of chorioretinitis in the right eye, with
cataracts in the right eye being greater than the left eye.
There is contained in the claims file a letter from Dr.
A.R.S., dated May 2, 2003, in which it was noted that the
veteran had an eye examination in April 2003. The results of
that examination were noted to be that the visual acuity with
best correction was light perception in the right eye, and
20/25 J1 in the left eye. It was also noted that color
vision was normal in the left eye, and that the left eye had
3+ nuclear cataract. The intraocular pressures were normal
in each eye, and the left eye macula was normal.
Analysis
The veteran's service-connected eye disability is rated under
Diagnostic Code 6070. A 30 percent disability evaluation is
warranted when there is blindness in one eye, with only light
perception, and visual acuity of 20/40 in the nonservice-
connected eye. 38 C.F.R. Part 4, Code 6070. A 40 percent
evaluation is warranted for blindness in one eye, having only
light perception, when corrected visual acuity in the other
eye is 20/50 (6/15). 38 C.F.R. § 4.84a, Diagnostic Code
6069.
Essentially, service connection is in effect for residuals of
chorioretinitis, no light perception, right eye. Service
connection is not in effect, however, for any disability in
his left eye. Where service connection is in effect for only
one eye, the visual acuity in the nonservice-connected eye is
considered to be normal (20/40 or better) unless there is
blindness in that eye. 38 U.S.C.A. § 1160(a)(1) (West 2002);
38 C.F.R. §§ 3.383, 4.84a, Diagnostic Code 6070; Villano v.
Brown, 10 Vet. App. 248, 250 (1997). The best distant vision
obtainable after correction by glasses will be the basis of
rating, except in cases of keratoconus in which contact
lenses are medically required. 38 C.F.R. § 4.75 (2005).
The Board acknowledges that the January 2003 VA medical
examination provided a diagnosis that was inconsistent with
the results of the examination itself as contained within the
report. Notwithstanding, the Board also notes that the
private medical treatment records and statement submitted by
the veteran's private physician, Dr. A.R.S., provide a
disability picture of the veteran's visual acuity that is
consistent with the foregoing results of the January 2003 VA
examination, as opposed to the diagnostic impressions
registered in the January 2003 VA examination report.
Regardless, the Board finds, for the purpose of determining
the appropriate disability rating, that it can accept the
private treatment records as an accurate reflection of the
veteran's right eye disability and left eye visual acuity.
In summary, the evidence as a whole (giving considerable
weight to the private treatment records) documents that the
veteran's residuals of chorioretinitis of the right eye, are
manifested by light perception only, with scotoma, in the
right eye; and central visual acuity of 20/25 near vision and
20/30 distant vision, with a normal visual field, in the left
eye.
Based on the medical findings of light perception only for
the right eye and no worse than 20/30 for the left eye, 38
C.F.R. § 4.84a, produces a disability percentage evaluation
of 30 percent under Diagnostic Code 6070. 38 C.F.R.
§ 4.84(a) does not provide for a higher disability rating for
a change of light perception to no light perception for one
eye. The veteran has been assigned a 30 percent evaluation
for residuals of chorioretinitis, no light perception, right
eye. This is the maximum schedular amount available for
blindness in a service-connected right eye, with no blindness
in his nonservice-connected left eye. When only one eye's
disability is service connected, the maximum evaluation for
total loss of vision of that eye is 30 percent, unless there
is (a) 20/50 or higher in the nonservice-connected left eye;
(b) enucleation of the service-connected right eye; or (c)
serious cosmetic defect. 38 C.F.R. §§ 3.383, 4.80. None of
those criteria are met here. As discussed above, the visual
acuity in the veteran's left eye is at worse 20/30. Neither
eye has been enucleated. There is no evidence of visible
distortion or any other type of cosmetic defect.
The Board has considered whether the veteran's disability
could be evaluated under any other diagnostic codes, but
finds that a rating higher than 30 percent is not warranted
under any diagnostic code. Initially, the Board notes that
service connection has not been granted for cataracts. As
the veteran clearly retains both eyes, the provisions of 38
C.F.R. § 4.84a, Code 6066, are not for application. In
addition, as there is no evidence suggesting impairment of
ocular muscle function, the provisions of 38 C.F.R. § 4.84a,
Code 6090, are also not for application. A rating in excess
of 30 percent is not available under 38 C.F.R. § 4.84a, Code
6080, pertaining to impairment of field of vision, as the
field of vision in the veteran's left eye has been shown to
be within normal limits. As service connection is not in
effect for a left eye disability, only those provisions of
the diagnostic code relating to unilateral concentric
contraction or unilateral loss of visual field are for
application; a maximum 30 percent evaluation is assignable
for unilateral concentric contraction or loss of visual
field, pursuant to Code 6080. Finally, a rating in excess of
30 percent is not available under any code for scotoma of the
right eye. As indicated above, the rating schedule only
provides for a 30 percent rating for loss of use of one eye,
and specifically prohibits combining the 30 percent rating
with any other rating for impaired vision.
Therefore, it is concluded that the preponderance of the
evidence is against the veteran's claim for an evaluation in
excess of 30 percent for the service-connected right eye
disorder. Even though he is essentially blind in the
service-connected eye, as discussed above, with normal vision
in the nonservice-connected left eye, a higher rating is
simply not warranted. The veteran is receiving the highest
rating available for his current disorder, 30 percent.
Based upon the foregoing analysis, the Board concludes that
the preponderance of the evidence is against the assignment
of an evaluation in excess of 30 percent for the veteran's
service-connected right eye disability, characterized as
"defective vision of the right eye, light perception only,
with scotoma, residuals of chorioretinitis." As the
preponderance of the evidence is against the claim, the
benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. §
5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App 49 (1990).
Extraschedular Considerations
In exceptional cases where schedular evaluations are found to
be inadequate, consideration of "an extra-schedular
evaluation commensurate with the average earning capacity
impairment due exclusively to the service-connected
disability or disabilities" is made. 38 C.F.R. § 3.321(b)(1)
(2005). The governing norm in these exceptional cases is a
finding that the case presents such an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards. Id.
The Board first notes that the schedular evaluation in this
case is not inadequate. Higher ratings are provided for
greater degrees of disability for the veteran's eye disorder,
but the medical evidence reflects that the required
manifestations are not present in this case. Second, the
Board finds no evidence of an exceptional disability picture
for this disorder. The veteran has not required
hospitalization or frequent treatment for this disability,
nor is it shown that it otherwise so markedly interferes with
his employment as to render impractical the application of
regular schedular standards. It must be noted that
impairment in earning capacity in civil occupations is
already contemplated in the schedular standards. What has
not been shown is an exceptional disability picture. For the
reasons noted above, the Board concludes that the impairment
resulting from this service-connected disability is
adequately compensated by the schedular rating. Therefore,
extraschedular consideration under 38 C.F.R. § 3.321(b) is
not warranted.
(CONTINUED ON NEXT PAGE)
ORDER
Entitlement to a disability evaluation in excess of 30
percent for service-connected defective vision of the right
eye, light perception only, with scotoma, residuals of
chorioretinitis, is denied.
____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs